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RELIGIOUS FREEDOM in INDONESIA Between Upholding Religious Freedom in Indonesia RELIGIOUS FREEDOM IN INDONESIA Between Upholding Constitutional Provisions and Complying with Social Considerations Bani Syarif Maula STAIN Purwokerto, Indonesia Abstract: Human rights, including freedom of religion, are generally accepted and granted by all governments regardless of their ideology, political, economic, and social conditions. In a Muslim majority country such as Indonesia, ideally freedom of religion is considered to mean that the government allows religious practices of religious minorities or other sects besides the state religion, and does not persecute believers in other faiths. This paper discusses Indonesia’s constitutional provisions concerning legal rights of citizens on freedom of religion, whether the government upholds the constitution as a concrete way to deal with human rights protection or it complies with some groups’ demand to tighten restrictions on “the Western concept of” religious liberty. This paper concludes that even though there are many provisions in the Indonesia’s constitution and in its legal system which is supportive of religious freedom, some governmental provisions were enacted based on social considerations, rather than to strengthen constitutional provisions. Keywords: Religious Freedom, Human Rights, Indonesia’s Constitution Introduction Religious freedom can be considered as one of the most fundamental human rights, because this right is one of the manifestations of personal liberty which comes from the most inner part of humans. In this way, interference with the freedom of religion and belief will often be experienced as grave violations. Thus, everyone must have the freedom to observe and to practice his/her faith JOURNAL OF INDONESIAN ISLAM 383 Volume 07, Number 02, December 2013 Bani Syarif Maula without fear of or interference from others. The general idea of preserving the rights of religious freedom lies in the history of protecting religious minorities, and, even though the right to religious freedom is considered the foundation of Western human rights ideology, it is universally acceptable as one of the foundations of a democratic society. In a Muslim majority country, such as Indonesia, ideally freedom of religion is considered to mean that the government allows religious practices of religious minorities or other sects besides the state religion, and does not persecute believers in other faiths. However, in practice, religious minorities in Muslim countries suffer from restrictions on this right. In Indonesia for example, a new Indonesian decree to regulate places of religious worship which is arguably favor the local religious majority. It has been drawn criticism from groups ranging from Christians to minority Islamic sects such as Ahmadiyah and it has also been challenged in an appeal to the country’s Supreme Court. Moreover, on June 9, 2008, Religious Affairs Ministry, Home Ministry, and Attorney General signed a joint-decree ordering the Ahmadiyah community to “stop spreading interpretations and activities which deviate from the principal teachings of Islam,” including “the spreading of the belief that there is another prophet with his own teachings after Prophet Mohammed.” Violations of the decree are subject to up to five years of imprisonment. Human rights groups have jumped to the defense of Ahmadiyah, encouraging the group to log in a judicial review of the 1965 law with the Constitutional Court and the decree with the Supreme Court. In addition, establishment of worship places becomes more difficult for minority religions. Christians in Indonesia, for example, feel increasingly uneasy, especially after some Islamists forced several unofficial houses of worship to shut down. This paper examines the possibility of Indonesia’s constitutional provisions concerning religious rights of citizens to be a concrete way to deal with human rights protection. The paper will be divided into three parts. The first one describes religious freedom in the Indonesia’s constitution. The second part examines freedom of religion in Islam. This part is included because Indonesia is the biggest Muslim majority country in the world, which is influenced, more or less, by Islamic values. The third part deals with the real application of the 384 JOURNAL OF INDONESIAN ISLAM Volume 07, Number 02, December 2013 Religious Freedom in Indonesia constitutional rights of religious freedom, in which some restrictions on religious freedom in Indonesia are applied. Religious Freedom in the Indonesia’s Constitution Indonesia is a predominantly Muslim country with secular state. The absence of any reference to Islam in the 1945 Constitution shows that Indonesia is open to all religions. This is in accordance with international human rights norms which stipulate, among other things, that the government is not only prohibited from limiting religious freedom, it is also unacceptable, according to International standards of democracy, to endorse a particular religion. The Constitution of Indonesia provides for freedom of religion, and the government generally respected this right in practice, particularly since the amendment to the Indonesia’s constitution in 2000. Freedom of religion is a mandate of the Indonesia’s constitution (the 1945 Constitution), of which article 29(2) declares that “the State guarantees the freedom of every citizen to embrace their religion and to worship according to their religion and conviction”. This is reinforced with article 28E, introduced by an amendment to the 1945 Constitution, which states that “[e]very person shall be free to embrace and to practice the religion of his or her choice”, and “every person shall have the right to the freedom to hold beliefs, and to express his or her views and thoughts, in accordance with his/her conscience”.1 The constitutional provisions were then reinforced with Indonesia’s ratification of the International Covenant on Civil and Political Rights in 2006 and its subsequent incorporation into domestic law.2 In addition to the constitutional provision above, Law No 39/1999 on Human Rights states in article 22(1) that “every person is free to profess their religion and to worship in accordance with their religion and conviction”, and also based on article 22(2), the freedom to profess one’s religion and to practice one’s convictions and beliefs are guaranteed by the state. Indonesia was admitted as a member of the United Nations following its independence. As a member state, Indonesia is governed 1 Article 28E (1) and (2). 2 Asian Human Rights Commission (AHRC), 2006. “Indonesia: Ratification of Key Human Rights Instruments Must be Followed by Legal Reform”, a Statement by the Asian Human Rights Commission, retrieved from: <http://www.ahrchk.net/state- ments/mainfile.php/2006statements/457/> JOURNAL OF INDONESIAN ISLAM 385 Volume 07, Number 02, December 2013 Bani Syarif Maula by the United Nations Charter. Article 55 of the UN Charter proclaims one of the purposes of the UN Charter as being to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.3 Pursuant to article 56 of the UN Charter, “all members of the United Nations pledge to take joint and separate action in cooperation with the United Nations for the achievement of the purposes set forth on article 55”.4 The General Assembly of the United Nations considered that the UN Charter obliged member states to promote human rights and condemned those who violated such rights.5 It is important to observe that the UN Charter recognized the entitlement of human beings to rights by reason of their humanity alone. It means that the dominant approach to the normative foundations of international human rights standards regards human rights as moral entitlements that all human beings possess by virtue of their common humanity.6 However, the maximum level, or common standard, of the protection of human rights can be seen in the text of the Universal Declaration of Human Rights (UDHR). The UDHR lists numerous rights to which people everywhere are entitled, but the UDHR is not a legal document which has legally binding force. In fact, it is only a general statement of principles, which has power in the world of public opinion. Its principles have been translated into legal force such as systems of law which aim to protect human rights. These systems, laws and instruments have predominantly been developed and administered by the United Nations (UN). These include the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), along with various treaties that make up the international human rights regime, which 3 Charter of the United Nations (1945) 4 Ibid. 5 UN General Assembly Resolution 719 (VII); 1953, and UN General Assembly Resolution 285 (111); 1949. 6 Patrick Macklem, “What is International Human Rights Law? Three Applications of a Distributive Account,” Bernard and Audre Rapoport, Center for Human Rights and Justice University of Texas School of Law, November 19, 2007, retrieved from: <http://- www.utexas.edu/law/academics/centers/humanrights/publications/macklem_texas_pa- per.pdf> 386 JOURNAL OF INDONESIAN ISLAM Volume 07, Number 02, December 2013 Religious Freedom in Indonesia have been ratified by more than 190 countries.7 According to international law, international treaties which have been ratified must be implemented by state parties in good faith by committing themselves to making laws in their country to protect these human rights. However, over half the countries of the world have not ratified the ICCPR or the ICESCR or other international human rights treaties.8 It is normally fruitless to compare basic human rights with each other, to find the most important right or the most dignified right. However, it is worth pointing out, together with the historical facts, that religion and thought constitute the most inner part of human. A belief in a specific religion, if we look at the individuals own grounds for adopting and manifesting a specific belief, will often include belief in a divine god or other divine objects, with power over the life of each person.
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